Juniper v. Warden of The Sussex I State Prison

• Decision Date: 04 March 2011
• Docket Number: Record No. 062556.
• Citation: 281 Va. 277,707 S.E.2d 290
• Court: Virginia Supreme Court
• Parties: Anthony Bernard JUNIPER, Petitioner,v.WARDEN OF the SUSSEX I STATE PRISON, Respondent.

281 Va. 277

707 S.E.2d 290

Anthony Bernard JUNIPER, Petitioner,

v.WARDEN OF the SUSSEX I STATE PRISON, Respondent.

Record No. 062556.

Supreme Court of Virginia.

March 4, 2011.

Present: KINSER, C.J., LEMONS, GOODWYN and MILLETTE, JJ., and CARRICO, RUSSELL and KOONTZ, S.JJ.

Upon consideration of the petition for a writ of habeas corpus filed December 11, 2006, and the May 1, 2007 petition for a writ of habeas corpus filed in compliance with the Court's March 2, 2007 order, the respondent's motion to dismiss and petitioner's opposition to the motion to dismiss, the Court is of the opinion that the motion to dismiss should be granted and the writ should not issue.

Anthony Bernard Juniper was convicted in the Circuit Court of the City of Norfolk of four counts of capital murder, one count of statutory burglary, and four counts of use of a firearm in the commission of a felony. The jury fixed Juniper's punishment at death for each of the four capital murder convictions and at life plus eighteen years' imprisonment for the remaining convictions. The trial court sentenced Juniper in accordance with the jury verdict. This Court affirmed Juniper's convictions and upheld the sentences of death in Juniper v. Commonwealth, 271 Va. 362, 375–76, 626 S.E.2d 383, 393, cert. denied, 549 U.S. 960, 127 S.Ct. 397, 166 L.Ed.2d 282 (2006).

In claim (I), petitioner alleges that the Commonwealth failed to disclose exculpatory information to petitioner as required by Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), presented false testimony or allowed it to go uncorrected in violation of Napue v. Illinois, 360 U.S. 264, 269–70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) and Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and made misleading representations to jurors.

As the Court has stated previously:

In Brady [ ], the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. Whether evidence is material and exculpatory and, therefore, subject to disclosure under Brady is a decision left to the prosecution. Inherent in making this decision is the possibility that the prosecution will mischaracterize evidence, albeit in good faith, and withhold material exculpatory evidence which the defendant is entitled to have under the dictates of Brady. If the defendant does not receive such evidence, or if the defendant learns of the evidence at a point in the proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are violated.

.... Exculpatory evidence is material if there is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. “A reasonable probability” is one which is sufficient to undermine confidence in the outcome of the proceeding.

Muhammad v. Warden, 274 Va. 3, 3, 646 S.E.2d 182, 186 (2007) (internal citations omitted) (quoting Muhammad v. Commonwealth, 269 Va. 451, 510, 619 S.E.2d 16, 49–50 (2005)) (quoting Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111–12 (1994)).

When considering the failure to disclose pretrial statements by witnesses, this Court has recognized that such information constitutes favorable evidence to the accused to the extent that it is useful for impeachment purposes. Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352, 358 (1987).

The nondisclosure of such evidence, however, requires reversal “only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” Evidence is material in this sense “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

Id. (internal citations omitted).

Furthermore, this Court has previously held that, “[i]n order to find that a violation of Napue occurred ..., we must determine first that the testimony [at issue] was false, second that the prosecution knew of the falsity, and finally that the falsity affected the jury's judgment.” Teleguz v. Commonwealth, 273 Va. 458, 492, 643 S.E.2d 708, 729 (2007).

In the first portion of claim (I), petitioner contends that the Commonwealth failed to disclose the promise to informant Ernest Smith that the prosecutor would “try and do something after [Smith] testified to help [him] with [his] sentence.” Additionally, petitioner contends that the Commonwealth told Smith to “say whatever [he] had worked out with the detectives.” In support of his claim, petitioner relies on the affidavit of Smith, the motion for a reconsideration of Smith's sentences filed after Smith's testimony, and the hearing on that motion, in which the Commonwealth joined, held shortly after petitioner was sentenced to death.

The Court holds that this portion of claim (I) is without merit. The record, including Smith's affidavit, the affidavit of the prosecutor and the transcript of the reconsideration hearing, demonstrates that Smith asked for a deal but that the prosecutor made no promises or deals with Smith in exchange for his testimony. Subsequently, the Commonwealth joined Smith's motion to reconsider sentence because Smith testified twice at petitioner's trial and because Smith was receiving threats as a result of his cooperation.

In the second portion of claim (I), petitioner alleges that the Commonwealth failed to disclose to petitioner that Keon Murray testified falsely against him. Petitioner alleges that police detectives created the story that Murray related at trial and threatened to charge him with being an accessory after the fact if Murray did not comply. Petitioner further contends that after Murray invoked his Fifth Amendment right and refused to testify, Murray was removed from the courtroom and the prosecutor threatened Murray by telling him that if he did “not testify as instructed” he would be charged with capital murder and would face the death penalty.

The record reveals that none of the alleged evidence was favorable to petitioner. The record, including the trial transcripts, demonstrates that Murray was removed from the courtroom while the prosecutor and defense counsel discussed whether the prosecutor would offer Murray immunity, and was returned only after the court accepted the prosecutor's plan to grant immunity to Murray. In addition, the trial transcript and the affidavits of the prosecutor and the detectives demonstrate that the prosecutor did not threaten Murray with criminal charges related to the murder. Murray's taped statement to police implicated petitioner and thus was not exculpatory.

In the third portion of claim (I), petitioner alleges that the Commonwealth failed to disclose to petitioner that Terence Fitzgerald was “directed ... to conceal certain information when testifying.” Relying on the affidavit of Fitzgerald, petitioner contends that Fitzgerald was told to conceal his sexual relationship with Keshia Stephens, one of the victims, and his knowledge of the “foot traffic” at Keshia's apartment. Petitioner contends further that “[p]rosecutors failed to reveal that Fitzgerald reported to police that the only person he thought could have committed the crimes ‘was someone who had been pistol whipped by some friends of Keshia's brother’ ” and that Fitzgerald had seen “a car parked on the corner of [Keshia's] street with three black men in it who were watching him and the kids closely as they left for school” on the day of the murders. Petitioner contends the prosecution “also unconstitutionally failed to reveal that they told Fitzgerald that, in exchange for his testimony against Juniper, they would not ‘make trouble for [him]’ concerning other charges.”

The record reveals that none of the alleged evidence was favorable to petitioner or it was known to petitioner prior to trial. The record, including the trial transcript and Fitzgerald's affidavit, demonstrates that there is no evidence that Fitzgerald told police about “a very bad feeling” he had about the car or the men inside it, or that the information the prosecutor allegedly wanted him to conceal included his sexual relationship with Keshia or the “foot traffic” at her apartment. Petitioner fails to articulate how the sexual nature of Fitzgerald's relationship with Keshia would have been relevant, and the record, including notes prepared by petitioner's investigator, Wayne Kennedy (“Investigator Kennedy”), demonstrates that defense counsel was aware of the “foot traffic” and that Fitzgerald was considered to be Keshia's “sugar daddy.”

Furthermore, Fitzgerald's theory, expressed during the investigation, that Keshia was killed by “someone who had been pistol whipped by some friends of Keshia's brother,” was disclosed to petitioner in the pre-sentence report. This claim, therefore, is barred because this non-jurisdictional issue could have been raised in a motion for a new trial and on direct appeal and, thus, is not cognizable in a petition for a writ of habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29–30, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).

In addition, petitioner alleges that Fitzgerald was at the apartment the day after the murders and that he noticed what appeared to be blood on the carpet in the hallway between the living room and the bathroom as well as in the bathtub in one of the bathrooms. Petitioner contends that this information would have undermined the Commonwealth's theory that “the murders occurred solely in the bedroom and that the incident occurred in a very compressed time frame.”

The record reveals that none of this alleged evidence was favorable to petitioner. The record, including the trial transcript,...